Cooper v. Registrar of Arrears — 4 N.Y. St. Rep. 834

Majority

p. 834

Matter of the Application for a Writ of Mandamus by Nicholas Cooper, App’lt, v. The Registrar of Arrears of the City of Brooklyn, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Taxes and assessments—Brooklyn charter, Laws 1873, chap. 863— Duty op registrar as to furnishing bills op arrears—Tax sale —Title.

Where the relator demanded, of the Registrar of arrears of Brooklyn bills for “all arrears of taxes, assessments, water rates and liens against each ” of certain lots, and the Registrar gave separate bills for each of said lots, with divers items of arrears, which bills the relator paid, supposing it included all arrears, and it appears that an item was left out, and the city sold the lands for this omitted arrear. Held, that the Registrar was bound to furnish the bills by Laws of 1873, chap. 863, title 8, § 16, and that if he failed to give the bills no title could be sold.

Appeal, from an order of the Kings county special term denying a motion for a writ of mandamus to the registrar of arrears to receive a sum of money alleged to be due for taxes, etc., and to cancel said taxes, hens and a certain tax sale of said realty.

The petitioner, being the owner of three lots in the city of Brooklyn, went to the office of the registrar of arrears of said city on March 18, 1886, and said to the clerk stationed at the window or opening marked “ Bill Clerk” that he wished to pay all arrears on said lots, and requested to be furnished with bills for the same. Said person so in charge thereupon prepared such bills and handed them to the petitioner. Each bill had several items of arrears on it, and the petitioner then and there paid the aggregate of said bills, supposing he was paying ah the arrears on said lots, and they were returned to him receipted.

A short time thereafter the said registrar sold said three lots for arrears, of which the petitioner received notice from the purchaser on June 3. The fact was, that when the bills were made out for petitioner as aforesaid one item of arrears was either negligently or designedly left off of each. After learning of such sale by the registrar the petioner tendered to him the full amount of said three items of arrears with all percentages due thereon.

This is substantially the statement in the petitioner’s affidavit. In addition it sets forth that in said registrar’s office the books are kept in a space partitioned off, and are not open to the inspection of the public; and furthermore that the “ invariable rule and custom ” in said office is for said registrar to furnish complete bills to all persons applying to pay arrears.

p. 835

William J. Gaynor, for app’lt; Almet F. Jenks, corporation counsel, for resp’t.

Whatever may have been the strict legal right of the registrar in respect to a specific arrear, in order to compel him to act under the city charter, if he does answer the general denial he is bound to do so correctly.

The demand in this case was for “all arrears of taxes, assessments, water rates and liens against each of said lots.” The number of the lots were given, Nos. 41, 42, 43, in block 55, ward 23. The registrar acted and gave “separate bills for each of said lots, with divers items of arrears.”

The relator paid the bills, and it appears that an item was left out and the city sold the lands for this omitted arrear. The relator supposed the bill included all arrears, and knew nothing of the sale until it was made. That upon learning of the sale, the relator went to the registrar and tendered the arrear and all interest and charges on it, which tender was refused. The registrar was bound to furnish the bills by title 8, section 16, of the charter. If he failed to give the bills, no title could be sold. Van Benthuysen v. Sawyer, 36 N. Y., 150 .

The section in respect to official searches was designed for a different purpose. It was to be evidence of the lien or freedom from Men by arrears of tax, and the registrar was responsible for the accuracy of his search and was entitled to a fee.

Upon the relator’s affidavit there is a strong case for relief against the sale. If the facts are doubtful, an alternative writ should furnish the means for the trial of the issue. Under the affidavit of the clerk an issue was made upon the facts. Kane makes affidavit that the relator was told that there was a large number of other arrears, and that the relator said that he knew of that fact.

The order should be reversed and an alternative writ of. mandamus ordered, with costs to abide event of the proceeding.

Pratt, J., concurs.